Family of nursing home resident forced to arbitrate wrongful death claim

Lola Norton was a nursing home resident. After her death, her husband brought a wrongful death claim against PruittHealth - Taccoa. The alleged injuries are unimportant for purposes of this blog article.

The nursing home responded to the lawsuit by showing where Kim, Lola's daugher and agent under Lola's power of attorney, signed an arbitration agreement. Presumably it was part of the admissions package. In other words, the nursing home didn't want a jury deciding the case.

First, let's think about what a wrongful death claim is. It's a claim that family members can bring against an alleged wrong-doer for depriving them of their loved one's companionship. It's different from the injured party's own pain and suffering or other loss. In other words, Lola's husband was suing because he claimed the nursing home deprived him of his wife's love and affection. With that in mind, let's see what the court said.

The trial court held that the wrongful death claim, which is different from Lola's claim, was subject to arbitration because Lola's agent (Kim) signed the arbitration agreement. On appeal, the Georgia Court of Appeals reversed. Then, when the case went to the Georgia Supreme Court, it reversed the Court of Appeals and held that the nursing home could compel arbitration. Its reason was this: the wrongful death claim is derivative of Lola's own claim. You might think of the husband's wrongful death claim as the caboose and Lola's own claim for pain and suffering is the engine. So if the nursing home could force Lola to go to arbitration, then any tag-along claims like her husband's must also go to arbitration.

Is this result fair? Well, I suppose you have to make your own decision about whether you think arbirtation is fair. Some people think the court system is broken and plaintiffs are paid too much. Others look at how big business treats the little guy and believe the little guy needs an even playing field to hold wrong-doer's accountable and make them mend their ways. Among the criticisms of arbitration, they are private, behind closed doors, so a wrong-doer never has to tell the public whether it did anything wrong and, if it did, how much it had to pay. Another criticism is that arbitrators might be biased; nursing homes and other big businesses have the ability to send many cases to a paid arbitrator (buttering their bread so to speak), while a family only has one case. Still another criticism is that arbitration deprives a family of the outrage factor that should be part of the legal system. For example, how would you feel if someone "killed" your mother? You'd probably want someone to think about whether punitive damages are appropriate and you'd probably want the person doing the deciding to share your values. Juries tend to share community values, but arbitrators tend to be buttoned-down businessmen or business women. Many arbirtators are usually accountants or attorneys. They may not share your outrage. Keep in mind that by "outrage" we are not suggesting that anyone should use the court system to gain a windfall. We are simply suggesting that big busines should not be allowed to decide that it's cheaper to hurt people than it is to do the right thing (e.g., the Ford Pinto case).

What are some of the positives of arbitration? Well, it's usually faster. Preparing a case for trial and going to court can take years. Arbitration can be finished in a few months. Also, some people think juries are out of control. Arbitration awards (to the extent they are reported) tend to be lower. Some people think "run away juries" have driven up the cost of health care. There are many opinions out there, but those opinions tend to change when the case becomes personal - when it's your family. Various webpages, such as Findlaw, list other pros and cons of arbitration.

The purpose of this article is not to say that arbitration is good or that it's bad. Instead, it's meant to remind you that seemingly innocuous documents can change your legal rights. If you don't understand something in an agreement, you should consider having a lawyer explain it to you. If Lola's family had taken the arbitration agreement to an elder law attorney before signing it, and asked "what does this mean," then they might have had a right to a jury. As it is, they will be going to arbitration.

About the author

David L. McGuffey is in private practice with the Elder Law Practice of David L. McGuffey, LLC, located in Dalton, Georgia and in Cartersville. David limits his practice to Elder Law and Special Needs Law. This means he helps individuals who are elders or who have special needs, as well as their caregivers. Much of David's practice is devoted to helping individuals with chronic health conditions find, get and pay for good long-term care. David is certified as an Elder Law Attorney by the National Elder Law Foundation. David is AV rated by Martindale-Hubbell. In 2012, David was invited to join NAELA's Council of Advanced Practitioners. David has been selected as a "Georgia SuperLawyer" in the field of Elder Law for 2013, 2014, 2015.